More Info About the Supreme Court’s Tuition Tax-credit Case

In 1997, Arizona passed a statute permitting residents to contribute up to $500 ($1,000 for married couples) that they would otherwise pay in taxes to a nonprofit “school tuition organization” of their choice. STOs are charitable groups that give scholarships to students in private schools.

Because many STOs provide their scholarships to religious schools, a group of citizens sued, challenging the program as an unconstitutional establishment of religion and asking the courts to kill it. Last year the [notoriously liberal] Ninth Circuit Court of Appeals agreed and struck it down.

In the 2002 case Zelman v. Simmons-Harris, a divided court (5-4) upheld a Cleveland school voucher program, reasoning that parents, not the state, decided how to use the vouchers. So even though 96% of parents used their vouchers for Catholic private schools, the state didn’t violate the separation of church and state by issuing the vouchers in the first place.

In Arizona, similarly, it is citizens—not the state—who decide whether to use their tax credit for a religious STO or a nonreligious one. The pending Supreme Court case, therefore, seems to fit comfortably within the Zelman precedent. Still, the outcome is no sure thing.

The other reason to watch this case closely is that the outcome may turn on “standing.” To challenge a government program, a plaintiff must show that he or she has been injured by it. Accordingly, several justices asked on Wednesday whether the Arizona program puts any of the plaintiffs’ money at stake. Arizona argues that it doesn’t.